Same-sex marriage (SSM) & domestic partnerships in California

Amendment approved for 2008-NOV vote

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Background:

In the year 2000,
61% of Californians passed Proposition 22. It restricted marriage to one
man and one woman, and prevented the state from recognizing same-sex
marriages (SSM) solemnized in other jurisdictions.

However, the legislature subsequently passed
a series bills that gave same-sex
couples many of the same state rights as married couples.

Most recently, the Democrats in the legislature
passed two bills that legalized same-sex marriage in the state. Both were vetoed
by Gov. Arnold Schwarzenegger (R).

Meanwhile, a lawsuit made its way towards the California Supreme Court in
an attempt to make same-sex marriages available to all loving, committed couples
in California. The court heard oral arguments on 2008-MAR-04. They issued their
decision on MAY-14. It did not overturned Proposition 22 of a whim on the part
of "activist judges" as has been claimed by some. They declared Prop 22
unconstitutional because it violated two clauses in the state constitution: the equal
protection clause and the clause prohibiting sexual discrimination. In cases where a state constitution, legislation and
proposition(s) conflict, the constitution always rules.

Constitutional amendment/revision:

"The folks who want to redefine marriage will not give up, and they
will continue to push. The only way to protect marriage permanently is to
amend the state constitution so that [it] is not subject to the whims of
judges."1

This is a curious statement for a lawyer
to make because he must have been aware that no amendment to the state constitution
is permanent. Any amendment passed in 2008 could be repealed by
a second amendment two, four, six or more years in the future. All that is
needed is a sufficient number of signatures on a second petition. If support for SSM continues to increase at
its present rate, it would just be a matter of time before such a repeal
would take place. Thus, a constitutional amendment would probably be only a
temporary denial of marriage equality.

Geoffrey Kors of Equality California, a gay
and lesbian advocacy group involved in the case, said: "This will be one of the
-- if not the -- legal landmarks in the struggle for equal rights. It will have
a ripple effect not only in this country, but the whole world."

For two years, a pair of conservative Christian groups, had independently proposed
competing constitutional amendments to prevent loving, committed same-sex
couples in California from marrying.

ProtectMarriage.com's amendment was written to only ban same-sex marriage. It
states simply and unambiguously: "Only marriage between a man and a woman is valid or recognized in
California." It is backed by four fundamentalist Christian groups: Focus on
the Family, Family Research Council, the Alliance Defense Fund, and Concerned
Women for America. More details

VoteYesMarriage.com would have banned both same-sex marriages and
same-sex domestic partnerships. Committed same-sex couples would have been
reduced to roommates in the eyes of the law. They would have lost
about 400 state benefits that are routinely given to opposite-sex couples.
They would not be guaranteed visits to their partners in hospital; their
children would lack protections guaranteed to the children of opposite-sex
married couples. Their amendment was backed by four extreme fundamentalist
Christian groups: Liberty Counsel, the American Family Association, Campaign
for Children and Families, and the Traditional Values Coalition.

Each group had gathered signatures during 2006. Both failed to place the amendment on the
2006-NOV ballot. They had until 2008-APR to collect 690,000 signatures in order
to have a vote held on the 2008-NOV ballot. With almost 16 million registered
voters, there are lots of potential signers.

A poll by ProtectMarriage.com showed that the VoteYesMarriage amendment would
have been rejected by the voters. A poll by the VoteYesMarriage group had the
opposite result.

VoteYesMarriage terminated their petition drive.
A statement on the VoteYesMarriage.com campaign now says: "In defense of
marriage licenses between a man and a woman, we urge you to vote for the
California Marriage Protection Act, which is being led by the
ProtectMarriage.com campaign." 2

Protect Marriage.com spent $1.8 million on signature-gathering campaign
through 2008-MAR-30. About $1 million of the total came from the National
Organization for Marriage and Fieldstead and Co. The latter is the philanthropic organization
of Fieldstead Ahmanson, Jr. who is sometimes referred to as the "paymaster of
the political right." 3 Both sides are
expected to spend $10 to $15 million on their campaigns leading up to the
2008-NOV ballot.

On 2008-JUN-02, Debra Bowen, the California Secretary of State, certified the
"California Marriage Protection Act" for inclusion on the
November ballot as Proposition 8.

When the Supreme Court ruling was made pubic,
James Dobson, chairman of the fundamentalist
Christian group
Focus on the Family,
described the decision as an "outrage." He said: "It will be up to the
people of California to
preserve traditional marriage by passing a constitutional amendment. ...
Only then can they protect themselves from this latest example of judicial
tyranny." The phrase "preserve traditional marriage" is a commonly used
to mean denying same-sex couples the right to marry. Also at that time,
Governor Arnold Schwarzenegger (R)issued a statement saying that he respected the
court's decision and "... will not support an amendment to the Constitution
that would overturn this state Supreme Court ruling." 4 This
is a moral stance by the governor; he has no powers to effect the vote.

As written, the revision to the constitution is most unusual -- perhaps unprecedented. Most
amendments extend human rights. This one would identify a specific group --
loving, committed same-sex couples -- and deny them fundamental rights. Beth Hillman, a
professor at the University of California Hastings College of the Law, said that
the situation is unprecedented. No state has ever passed a constitutional
amendment to ban same-sex marriage after the court has granted same-sex
marriage. She said:

In general, constitutional amendments are not used to take away rights
but to extend civil rights. Plenty of initiatives have changed rights that individuals have, but none has been this specific in eliminating them"

The two sides were both hopeful of winning:

Andrew Pugno, Project Marriage.com's legal adviser, said:

"One
major theme will be that this is an opportunity for the voters to speak out
against the judicial activism that occurred here, with the court going
beyond its role as an interpreter of law to create new laws. I think the
fact that the court has already ruled on this increases the likelihood of
the marriage amendment passing. In the absence of a court ruling, or if the
court had upheld traditional marriage, it would be less clear that we needed
this amendment. ... Folks who support traditional marriage could have voted
no, thinking it was unnecessary, but now they know they must vote yes or the
court decision will be allowed to stand."

Kate Kendall, the executive director of the National Center for
Lesbian Rights said:

"Having won, we have a much better shot at
defeating the amendment. For the next six months, everyone in California
will have the experience of knowing gay people who get married. Just that
day-to-day interacting is going to propel us towards defeating this
amendment. ... If we win by even two or three percentage points, this will
be the last gasp of ardent anti-gay forces in this state." 3

References used:

The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.